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Law School Case Brief

Bolieu v. Sisters of Providence in Wash. - 953 P.2d 1233 (Alaska 1998)


Before a defendant can be held liable for negligence, it must owe a duty of care to the plaintiff. Duty is the expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection. In the absence of any other source of a duty of care, imposed, for example, by statute, contract, or doctrine of law, the court considers seven factors in deciding whether a duty of care exists: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.


Gwen Bolieu and Bodhmati Oliver were employed as nursing assistants at Our Lady of Compassion Care Center. In 1990 and 1991, many Our Lady employees again complained of various skin rashes and disorders. Both Gwen and Bodhmati were diagnosed and treated for a staph infections on both years. Gwen and Bodhmati filed workers' compensation claims. Dr. Michael Beirne apparently concluded in the context of their workers' compensation claims that their infections were work-related. 

Dr. Beirne diagnosed both Walter Bolieu and Orlin Oliver, the spouses of Gwen and Bodhmati, respectively, with staphylococcus bacterial infections. He opined that they contracted their skin infections from their wives. Walter and Orlin then each filed a personal injury complaint against Our Lady in 1993, alleging that they had been infected with staph during visits to the facility and/or through contact with his wife. Their complaints asserted that Our Lady owed them and their families a duty of care to maintain their care center free of staph or other infections diseases. Our Lady moved for summary judgment, arguing in part that health care facilities have no duty to protect non-patients from infectious agents routinely encountered in the general community. The superior court granted Our Lady's motion. Walter and Orlin filed a motion for reconsideration, supported by extensive materials not previously filed. The superior court denied their motion, entered final judgment against them, and awarded attorney's fees and costs to Our Lady.


Did Our Lady owe it's employees families the duty of care to maintain their care center free of staph or other infections diseases?




On appeal, the court reversed the summary judgment. The court weighed factors for the determination of whether a duty existed and found that Our Lady did owe a duty to appellants to control infections or warn of the danger of infections. The court concluded that it was foreseeable that appellants could be infected if Our Lady did not take reasonable measures at the facility to minimize the spread of diseases to the nursing assistants and their spouses, or did not warn the nursing assistants to take precautions to avoid infecting their spouses. Our Lady's conduct was not morally blameworthy. The court found that the cost of available insurance was minimal. The factors supported imposing a duty because the burden of doing so was modest and did not outweigh the benefits. Any dispute about whether Our Lady's conduct actually caused appellants' injuries was better resolved in the context of causation, not duty.

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